This post was contributed by a community member. The views expressed here are the author's own.

Health & Fitness

An Overlooked Flaw in City's "Accessory Use" Analysis

The Newport Daily News published a story on the PSNC Victualing License hearing on May 30, 2014.  It didn't quote Council members, but quoted a senior staff member heavily.  To summarize, the story indicated that the council's denial of the Elms Carriage House and Tea House victualing licenses could be helpful to the Preservation Society in its suit over the Breakers Welcome Center.  Unfortunately, the staff member's quotes distorted and disparaged the council's basis for denying the victualing license.  

The city zoning officer was openly critical of the council’s decision to deny victualing licenses for the Preservation Society’s Elms Carriage House and Marble House.  I welcome that criticism, but feel it warrants a factual response and a clarification.

First and foremost, the council’s decision on the victualing licenses was rooted, appropriately, in health and public welfare.  The testimony veered into zoning issues only because the process calls for a determination as to whether the proposed use is allowed in a particular neighborhood.  The zoning officer testified adamantly that museum cafeterias were allowed under the “accessory use” doctrine.  This is consistent with what the council and the public was told for months - by the city and by the Daily News. 

Find out what's happening in Newportwith free, real-time updates from Patch.

As a lawyer, I disagreed with that determination, so at the hearing, I questioned the analysis.  This questioning was not well received; but it was necessary because the analysis was flawed.

On its face, the “accessory use” theory is compelling.  Many museums have cafeterias – so some might ask, "why shouldn’t the Preservation Society have three - as 'accessories' to the Elms, the Marble House and the Breakers?"  Some would argue that visitors should be able to get a sandwich or a salad wherever they might want one.

Find out what's happening in Newportwith free, real-time updates from Patch.

But I’m not looking at this question just from the perspective of a hungry visitor.  I’m looking at it from a wider point of view - the health and public welfare of neighbors, and the entire community.  And just as importantly, I’m looking from the perspective of taxpaying business owners who formerly provided those meals to hungry visitors; and who now have the opportunity to provide them again.  ultimately, I denied the application on the basis of public welfare.  

But over the last week, it's become clear that my something else was at issue.  The Preservation Society seems to get preferential treatment from the city zoning office.  

  • PS operated the Elms Carriage House since 2006, and the Marble House since 2009 -  without victualing licenses - but was never cited.
  • PS did not receive a Department of Health license until October 2010, but was never cited.
  • PS did not obtain city permits to renovate the Carriage House and the Tea House, including installation of food service sinks, but was never cited.
  • PS rarely applies for Special Event licenses for their special events, but is never cited.

This is unfair to their tax-paying competitors.

And now, it's become clear that the zoning office overlooked a key fact relevant to the "accessory use" doctrine:  The Elms Carriage House is located on a completely separate parcel from the Elms.  This is significant, because it totally undermines the “accessory use” analysis, which should have restricted the accessory use to the museum lot, and prohibited it from the Carriage House lot.  Any "accessory use" is restricted to the lot where the primary use exists.  Unless the Carriage House is magically merged into the Elms lot, AND the city overlooks the fact that the merger would INCREASE the non-conformity of the lot, then "accessory use" does not apply to the Elms Carriage House.

It's unfortunate that our zoning office and the Preservation Society overlooked this key fact for 8 years.  But with the implementation of the city's new GIS system, this type of error will be easier to catch.  It will make all manner of property information available across departments, and to the public at the click of a virtual button.  

The bottom line is that the issue was decided fairly.  But going forward, tax-exempt nonprofits shouldn’t be competing against taxpaying businesses.  More importantly, the Elms Carriage House is NOT an "accessory use," and never should have opened without a formal zoning review.

Incidentally, the Preservation Society asked that we keep a discussion of PILOT payments separate until after the victualing issue had been decided.  I agreed to do so.  Well, now that the hearing is over, can we talk about an appropriate PILOT payment from PS to the City?  Perhaps we could start with a $1 per visitor impact fee.  Those 650,000 visitors are welcome, but we also need to find a way to offset the cost of maintaining the roads they use, as well as their need for fire protection, police protection and other personnel and infrastructure.

Any thoughts?

We’ve removed the ability to reply as we work to make improvements. Learn more here

The views expressed in this post are the author's own. Want to post on Patch?